Point I. On the Impediment of Error and Condition

A twofold error concerning matrimony is distinguished, namely: first, a substantial error, which concerns the person; second, an accidental error, which affects the qualities of the person. By condition, however, is understood a servile condition unknown to the other party.

795. Principles. - I. Every error concerning the person renders matrimony null by natural law, even if the error is altogether invincible. The reason is that on the part of the contracting party it removes voluntariness concerning the object of the contract, and therefore, consent being absent, the contract is invalid.

II. Error concerning the qualities of a person, whatever it may be, does not of itself invalidate matrimony. The reason is that error concerning qualities does not fall upon the object of the contract ¹; for that object is the person himself or herself with whom the contract is entered, as was just said, and not that person's qualities. Except the case in which a quality is explicitly intended as a condition sine qua non, as they say ².

¹ You have a solid reason why the contract of matrimony ought to remain valid even if error concerning qualities is antecedent and gives cause to the contract in Molina (On Justice and Law, tract 2, disputation 259, no. 8, and disputation 252, no. 5) and Sanchez (On Matrimony, book 10, disputation 9, no. 20); but more clearly in Lugo (On Justice and Law, disputation 22, no. 88), who argues thus: First, concerning the contract of matrimony and also concerning religious profession, or

vows constituting the religious state, such as the simple vows of our Society, I think it must be said that if the error or fraud does not concern the substance, even if it gives cause to the contract, it does not render it invalid or to be invalidated.... The reason is that in those things which constitute a state firm and irrevocable by its nature, such as profession and matrimony, the will accommodates itself according to the nature of the thing at issue and consents without restriction or condition, but altogether absolutely and independently of conditions other than those which belong to the substance of the same contract. For from those conditions marriages and professions, and therefore the state itself, would remain uncertain, which is not according to the nature of the thing at issue. Therefore, whatever may be said of other contracts, concerning these it must altogether be said that they are not invalidated by fraud, even one giving cause to the contract, provided that it does not concern the substance. The inconveniences of an uncertain matrimony, as Lugo calls it, Schmalzgrueber indicates thus (book 4, title 1, no. 447): If such an error vitiated matrimony, very many marriages would be dissolved, to the great harm of offspring, the greatest harm of the commonwealth, and public scandal, since error concerning a quality very frequently intervenes in this contract. See also St. Alphonsus, book 6, no. 1012.

² Error concerning a quality renders matrimony invalid not only in this case, but also in another which the Author omits, although each case can be contained in that general, though somewhat obscure, rule that matrimony is invalidated because of error concerning a quality when an error of this kind concerning a quality passes into the substance. Therefore the first case, which the Author also intimates, is when the quality is a condition under which consent is given; for it is manifest that when the condition fails, the conditioned thing, that is, consent, also fails. The other case is when the quality determines the person with whom someone intends to contract; or when one neither knows nor determines the person with whom one contracts except from the indication and mark of that quality. Concerning this Pirhing says (book 4, title 1, no. 163): If through the quality concerning which there is error a certain individual person is designated and conceived in the mind, who was previously unknown by sight, then the error redounds into an error of person. Likewise Sanchez says sufficiently clearly (book 7, disputation 18, no. 38): To explain when error concerning a quality redounds into an error of person diriment of matrimony, I say briefly that this occurs when there is error concerning a quality which designates a certain person, who was not previously known to the contracting party apart from that quality - namely, except from that quality - and it is not established that the mind of the contracting party was to consent to the person present to him, whoever that person might be.

III. Error concerning the servile condition of the other party dirimently invalidates matrimony by ecclesiastical law, as is established from book 4 of the Decretals, title 9. This impediment no longer has a place in Europe, where servitude has been altogether extinguished ³.

³ This impediment has no place in Europe, not because the law ceases, but because occasion is commonly lacking, unless perhaps in parts of the Turkish Empire, or if any persons still reduced to servitude should come from elsewhere into other parts of Europe. According to the common opinion of the Doctors, error in this matter invalidates matrimony even if it was crass. See St. Alphonsus, book 6, no. 1019, and Schmalzgrueber, book 4, title 9, nos. 29-31. But if the contracting party knows the servile condition of the other, or if a union contracted in ignorance is afterward ratified once the error is known, it is certain according to the opinion of all that the matrimony is valid. By the disposition of Canon law, however, one knowingly contracting with a female slave becomes irregular (canon Si viduam 15, distinction 34; St. Alphonsus, l.c., no. 1018, and Schmalzgrueber, l.c., nos. 15-18); and in the second case consent would have to be renewed before the Pastor and witnesses, unless perhaps the nullity of the preceding contract were so altogether occult that it could not be proved; for then consent emitted anew by the free party would suffice. See Schmalzgrueber, book 4, title 3, no. 121, and title 9, no. 18.

Moreover, this impediment, as is evident, has force only with respect to the matrimony of a free person with a slave; for - and this must be carefully noted for places in which servitude still has force - marriages between slaves are to be held valid beyond controversy (Schmalzgrueber, l.c., no. 7; see canon 2, question 2, cause 29, and St. Thomas, II-II, question 104, article 5), even if they are contracted without the consent of the master (canon Dignum 1, On the Marriage of Slaves; Schmalzgrueber, l.c., no. 10). Therefore, just as a slave licitly contracts matrimony even against the will of his master, so the master sins gravely against justice if he either positively impedes the slave from matrimony or, after he has contracted it, treats him more harshly for this cause. Nevertheless, the master is not bound positively to consent and to undergo the prejudice consequently arising, according to the opinion of several Doctors, so that the slave could and should then prefer a spouse seeking the debt to a master seeking service; although Sanchez (book 7, disputation 21, no. 15) judges that this has place even if the matrimony is made without the master's consent. See Schmalzgrueber, l.c., no. 13.

But since the master has the right of selling slaves, the Doctors resolve the difficulty arising from this if matrimony was contracted without his consent as follows. First, if matrimony has not yet been begun by betrothals concerning the future on the part of the slave, the master can sell the slave, because he thus does not impede matrimony and otherwise uses his own right. Second, if matrimony has already been begun by betrothals concerning the future, it is not licit for the master to use that means, because the betrothed woman already has an acquired right that the slave stand by his promises and contract matrimony, which the master would impede by sending the slave elsewhere. Third, finally, if matrimony has already been contracted, some have thought that the slave can be sold because thus not the matrimony but only its use is impeded; others, however, more consistently deny this unless the wife can conveniently follow her husband. Schmalzgrueber, l.c., no. 14.

796. Resolutions. - 1. If someone thinks that he is contracting nuptials with Anna and marries Agatha, the matrimony is invalid. It is otherwise if, thinking that he had married a noble, wealthy, virginal, and peaceable maiden, he finds her on the contrary common, poor, corrupted, and quarrelsome.

2. A matrimony is valid if someone marries a widow while thinking that he is marrying an unmarried woman, even if he was induced into this error through fraud; for fraud indeed induces an obligation of repairing the injury, but it does not bring it about that consent does not concern the substance of the thing at issue. Indeed, this has force even if he certainly would not have wished to contract had he previously known her to be a widow; for attention must be given not to what someone perhaps or even certainly would have done, but to what he actually did.

3. A noble maiden validly contracts with a wandering man who falsely boasts that he is noble and the possessor of many goods, and proves this by false testimonies. But that woman is not bound to cohabit with him and can immediately obtain perpetual divorce as regards bed and habitation. - St. Ligorius and all the others.